Posted on May 16, 2017
Law, Not Orders
Trump edicts mean next to nothing
Two weeks ago, President Trump signed an executive order to repeal the prohibition against politicking in churches, although it really doesn’t do that. The same order does, however, overturn the contraception mandate from Obamacare, except that it can’t. Still, by signing the order, he showed that he means business, sort of.
The policy of revoking churches’ tax-exempt status if they become directly involved in political campaigning comes from the Johnson Amendment, which then-House speaker Lyndon Johnson had added to a bill in order to protect his own reelection prospects. In other words, it is part of a law, and thus cannot be undone by a mere executive order. Neither can the contraception mandate, the power over which Obamacare assigned to the secretary of Health and Human Services.
Trump has just as meaningfully threatened an executive order to withdraw the United States from NAFTA, a threat his supporters say will force Canada and Mexico back to the table. Mind you, during the campaign, he had already morphed his promise to “rip up” the trade agreement into a wish to renegotiate it, with which both Canadian prime minister Justin Trudeau and Mexican president Enrique Pena Nieto agreed. If such a renegotiation takes place, it will be because each of the three heads of state imagines he is going to hoodwink the other two, not because Mexico and Canada fear Trump’s order.
Those media experts who claim that Trump can unilaterally scrap this “treaty” only serve to illustrate how woeful our civics education has become over decades of deliberate neglect. NAFTA, being an economic compact, is not really a treaty. Had it been, it would only have required approval by the Senate. Instead, it had to be passed as regular legislation through both houses of Congress, before being signed into law by President Clinton in 1993. The unanswered academic question of whether a president has the power to unilaterally end a treaty is irrelevant to this case.
Article 2205 of NAFTA says, “A Party may withdraw from this Agreement six months after it provides written notice of withdrawal to the other Parties.” So, all the president has to do is draft a statement saying we quit, scrawl his Donald J. Hancock on the bottom, and it’s done, right? Not so fast. The “parties” in this agreement are the three nations, not their individual political leaders, and the manner in which the United States would have to withdraw from such an agreement is spelled out very clearly in the Constitution.
Article I Section 8 empowers Congress, not the president, to regulate commerce with foreign nations. NAFTA is just such a regulation, which is why it had to take the form of legislation in the first place. A repeal of NAFTA would also require passage through both houses of Congress, and the governments of Canada and Mexico probably understand this better than our own lazy-minded media do.
At least when Trump signed his executive order for completion of the border “wall,” that action was supported by a piece of legislation, namely the Secure Fence Act of 2006. What he could not order, however, was that the project be funded.
Executive orders were never meant to serve as a short-cut through the legislative process. Either President Trump fails to grasp this, or else he is simply using his orders so that he will appear to have accomplished things he really has no interest in doing. When it came time to demand funds for the “wall” during budget negotiations, he declined. He could discard the contraception mandate by having his own HHS Secretary revoke the Obama administration rule, but he hasn’t. If he wanted to repeal the Johnson Amendment, he could try to encourage congressional Republicans to do exactly that.
Ironically, one thing Trump could get done through an executive order is his oft-repeated promise to repeal President Obama’s executive amnesty for so-called “Dreamers.” Not only was this not his first act upon taking office, as he had pledged, but he is now disinclined to do it altogether.
Merely pretending to get things done has been enough to earn him praise from highly-rated cheerleaders like Sean Hannity, who can be counted on to celebrate these inert orders with unquestioning fervor, accompanied by the requisite caption, “Trump: Promises Kept.” If maintaining that illusion is what’s important to Trump, then fighting for legislation to actually keep these promises would seem redundant. He might as well bother actually producing those Trump Steaks that he pretends are still on the market.
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